Wednesday, June 19, 2013

Handicapping Arizona's Next Lawsuit

By Mike Dorf
My latest Verdict column discusses Monday's SCOTUS ruling in Arizona v. Inter Tribal Council of Arizona. I make three main points: 1) The breakdown is refreshingly non-political; 2) The Court's rejection of a presumption against preemption could herald more findings of preemption; and 3) The case is not so bad for Arizona's citizenship ID law, because it leaves open the possibility that Arizona could bring a new case in which it appeals the underlying decision by the federal Election Assistance Commission (EAC), which said that Arizona is not entilted to demand documentary evidence of citizenship as part of a mail-in voter registration. Here I want to take a brief crack at the merits of that question that the Court did not decide: Would/should Arizona succeed in a challenge to the EAC ruling that it was not entitled to have the federal registration form include the demand for citizenship documentation?

Arizona's argument goes like this: States are entitled to set the substantive criteria for voting. Arizona has made citizenship such a criterion and furthermore, has placed great value on that criterion by requiring particular forms of documentation. Although the federal govt gets to change the law regarding the "manner" of holding elections, a law that makes it too easy for someone to claim citizenship is not a permissible manner regulation but a backhanded way of undermining the state's substantive criterion.
Is that persuasive? It's certainly not illogical. Suppose Arizona had a law that stated that only people who have read The Federalist Papers may vote. Let's put aside the question of whether such a law would be invalid on free speech or equal protection grounds. Instead, we want to know whether any particular federal law governing the manner by which qualifications are assessed is invalid on the ground that it extends into the state realm of setting substantive criteria for voting rather than just regulating manner. So suppose that Arizona asks the EAC to include on its application form ten particular multiple-choice questions about the Federalist Papers and further asks that only those applicants who correctly answer at least seven questions be permitted to register. The EAC refuses. Instead, it adds the following to the form:

Arizona law only permits persons who have read the Federalist Papers to register to vote. By signing this form, you attest that you have read the Federalist Papers.

There is at least a plausible case to be made that this manner of enforcement is so lax that it fatally undermines the state's substantive requirement of reading the Federalist Papers. Arizona makes the same claim with respect to citizenship back here in reality.

But note that in my hypothetical example, the signer merely "attests" to having read the Federalist Papers. The actual federal form for Arizona requires the signer to attest under penalty of perjury. Is that enough to convert what (by hypothesis) is an otherwise impermissible manner regulation into a permissible one?

Maybe not. Still, I think that the best argument against Arizona's position goes like this:

States do indeed get to decide the substantive criteria for voting. And while the line between a substantive criterion and a procedure for enforcing that criterion is admittedly fuzzy, it is one that must be drawn because it appears in the Constitution: Congress has power to enforce the "manner" by which elections are held but not to make the substantive criteria. The choice between attestation under penalty of perjury and documentary evidence pretty clearly falls on the "manner" side of the line. For Arizona to win, it needs to do more than simply show that attestation is less effective than documentary evidence. Arizona needs to show that attestation is so ineffective that it does not even count as enforcement of Arizona's citizenship requirement. But if that's true, then attestation is insufficient in all of the other states that make citizenship a criterion for voting--and so the EAC-approved federal form would be invalid as to all of those other states as well. Arizona's argument, if successful, would mean that federal forms for EVERY STATE would have to demand documentary evidence of citizenship. And that's plainly not true. QED.

I think that's a very effective response to Arizona's argument. We will now have to wait for the administrative appeal and/or litigation that the Supreme Court invited to see whether it succeeds

2 comments:

At what point is the question of too lax or sufficiently effective implementation a factual issue? We consistently hear that voter fraud of the type Arizona is allegedly seeking to prevent - voting by non-citizens - is extremely rare (both in terms of raw numbers and compared to e.g., absentee ballot shenanigans). While it might seem that more people would lie about having read The Federalist than about their citizenship, wouldn't that assumption have to be proved in order for the same Court to reach a different result in "Arizona's next lawsuit"?